Discussion of current legal issues

William Roper: So, now you give the Devil the benefit of law!Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?William Roper: Yes, I'd cut down every law in England to do that!Sir Thomas More: Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man's laws, not God's! And if you cut them down, and you're just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake! Robert Bolt, A MAN FOR ALL SEASONS (1966)

To justify taking away the constitutional rights of a citizen, many begin by demonizing the alleged offenders so it is easier to justify violating their constitutional rights. I speak of obvious circumstances like the government’s flaunting of international human rights and the laws of war. Many times America saw front-page color photographs of hooded, shackled, caged prisoners being held incommunicado on the U.S. Guantanamo Base in Cuba for an indefinite duration, with no access to families, press, or lawyers and interminably subjected to interrogations conducted without the protections of the Geneva Conventions.

But I also speak of how, every part of the government, including courts, like to demonize criminals as being somehow different from the rest of society before taking their constitutional rights. This is commonly done with the politically powerless –racial, gender or ethnic minorities –who are viewed as “those people” and not one of “us.” A lack of empathy for a criminal defendant makes it easier to impose unduly harsh penalties against those we have captured in the “war on drugs.”

The federal and state drug enforcement agencies employ more than millions of people. About half of those are drug enforcement agents who depend on the “war against drugs” for their livelihood. They often receive federal grants that allow them to buy new vehicles and advanced weaponry that they would receive in the absence of a war on drugs. Drug enforcement agencies annual budgets total about three billion dollars. The public would not tolerate such a huge commitment of public resources if it had not been convinced that dangerous drug users threaten to unravel the fabric of society.

Only recently when heroin abuse hit rural counties in Wisconsin have we not thought of drug users as demons in the dark but people who have become dependent on a horrible drug. Many drug users, like many people who drink alcohol, have a problem, but most drug addicts are no more menacing to society than most alcoholics. Some are responsible members of the community who became addicted to pain medication that was legally prescribed. Some experimented with drugs and were unable to overcome their addictive effects. Some use stimulants like methamphetamine to stay awake and alert for long hours. Some take illicit drugs to compensate for mental health issues. Others turned to drugs for the same reasons people abuse alcohol: to forget their problems, to overcome depression, to battle loneliness. The problem of addiction, like the problem of alcoholism, is a public health issue. Addicts suffer from the disease of addiction. That does not make them evil, any more than alcoholics are evil. Society should respond to those problems with compassion, understanding, and treatment, not with fear and scorn.

Likewise, the Wisconsin State Journal explained that the Wisconsin Supreme Court “has wrestled with a series of motions that sought to force [Justice] Gableman to step down from criminal appeals based on his campaign rhetoric demonizing defendants and their attorneys.” Dee J. Hall, “At state Supreme Court, conflict among the justices” Wisconsin State Journal Jan. 29, 2011. Such campaigns are foolish since they ultimately backfire and destroy public confidence in the legal system. For instance, In 2008, a survey conducted by Justice at Stake showed that approximately 52% of Wisconsin voters were confident in their Supreme Court. Hupy, “Restoring Public Confidence in the Judicial System” Marquette University Law School Faculty Blog

The United States Supreme Court held on June 20, 2016 in Utah v. Strieff that evidence of an alleged crime can be used against a defendant even if police did something illegal to obtain it. What does that mean? Law Enforcement can now legally act illegally to arrest people and courts will approve the illegality…..or at least look the other way. That only happens if you do not respect "those people."

Further, ordinary people are charged with knowledge of substantive criminal law, and if they make mistakes of law, they may not (absent special statutory exceptions) assert such mistakes as a defense to liability. This is so no matter how “objectively reasonable” a mistake may be. As has been said time and again, “ignorance of the law is no excuse.” Bryan v. United States, 524 U.S. 184, 196 (1998). Indeed, as Justice Holmes famously explained, “to admit the excuse at all would be to encourage ignorance where the law-maker has determined to make men know and obey.” Oliver Wendell Holmes, The Common Law 48 (1881). But in Heien v. North Carolina the Supreme Court said police are governed by a different rule: the Supreme Court ruled a “police officer’s reasonable mistake of law gives rise to reasonable suspicion that justifies a traffic stop under the Fourth Amendment.”

It takes little reflection to see “the fundamental unfairness” of holding citizens to strict compliance with the law “while allowing those entrusted to enforce the law” to interpret and apply the law more flexibly. United States v. Chanthasouxat, 342 F.3d 1271, 1280 (11th Cir. 2003) (internal quotation marks omitted). “Reciprocal expectations of law-abidingness between government and its citizens can scarcely be expected to endure if one party - the government - need not uphold its end of the bargain.” Wayne A. Logan, Police Mistakes of Law, 61 Emory L.J. 69, 91 (2011) (footnotes omitted). Indeed, if anything, those charged with enforcing the law should be expected to have a better - not worse - understanding than the general public. Any rule that undermines this actuality, and that rewards police officers with more authority when they are ignorant of the law they are supposed to be enforcing, flouts our most basic constitutional value

Of course those decisions make sense if you remember that the criminal system is designed to get those types of people who we all know are criminals.

According to the 7th U.S. Circuit Court of Appeals July 22 opinion, when a trial judge makes “extraneous and inflammatory comments during the sentencing hearing,” it “cast[s] doubt on the validity of the sentence.” Such a record leaves an appellate court with “no way of knowing” whether “these irrelevant considerations affected” the sentence. Such extraneous and inflammatory comments during the sentencing hearing occur when the trial judge makes “several wide-ranging soliloquies” on urban decay, social unrest, the “pathology” of some neighborhoods, and his own experiences in the defendant’s neighborhood.The case is United States v. Robinson and appellate decision is here and sentencing transcript here

Don’t delay in contacting attorney Paul A. Kscinski at 414-530-5214 If you’ve been seriously injured, or if you are having difficulty getting the money you believe you deserve from insurers, or if the other driver is making a claim against you, you should speak to Paul A. Ksicinski as soon as possible. You may only have a limited amount of time to seek damages. Moreover, Paul A. Ksicinski can help you work with insurance adjusters to make sure you receive a fair settlement. He will also help you to protect against being a victim of identity theft as a result of a car accident.

Here are the steps to take if in a car accident:

· CALL 911. If the accident was minor or if you believe no one was hurt, you may be tempted to not call the police. After all, who wants to change their plans by waiting for the cops to arrive? The reality is that if you fail to make a police report, you could face difficulty with insurance claims without an accident report. Some injuries also may take days to weeks before they become apparent. Post traumatic stress disorder and mild traumatic brain injury symptoms can appear long after the accident takes place. Without a police report of the crash, you may have difficulty collecting damages for your injuries later.

· Get medical treatment immediately. In any emergency situation (especially life-threatening or severe injury related situations), you should always seek immediate emergency assistance. Symptoms of a serious injury are not immediately visible. The following are all signs of personal injury that can occur immediately after an accident or appear several days or even weeks later: Pain, numbness, dizziness.

Therefore, when seeking medical attention after a personal injury, it's important to see a doctor as soon as possible for 2 major reasons:

The longer you wait after the car accident, the more difficult it will be to prove that any injuries you sustained were the result of the car crash. You put your health and well-being at higher risk the longer you go without receiving medical attention.

While you're waiting to see the doctor:

Take pictures on your phone of any bruises, cuts, scrapes, or other visible injuries. Don't worry too much about the quality of the pictures. Pictures taken with a smart phone provide good evidence. Document any pain or other symptoms.

Once you see your doctor, be sure to document medical expenses―both immediate and ongoing―as evidence for the car insurance company or your personal injury attorney (if you have one).

When Your Child Is Injured in a Car Accident

If you are a parent, you should always have your child examined by a medical professional after an auto accident. Young children can't communicate their feelings very well, so relying on your child to tell you what is wrong is not the best course of action.

Even if your child seems fine, symptoms of personal injury may not be immediately apparent.

NOTE: After a car accident, remember that you will also need to have your child car seat or booster seat replaced. Even if the device shows no signs of visible damage, the force of the impact could have caused small cracks in the material.Auto Accidents and Pregnant Women

Car accidents are frightening regardless of when they occur, but a crash can be especially traumatic for pregnant women. They are are susceptible after accidents to:

Miscarriage. Pre-term labor. Placental abruption.

Seeking a medical evaluation is always recommended if you are pregnant and involved in an auto accident with personal injury.

Depending on the severity of the accident and how far along you are in your pregnancy, your doctor will tell you what the best course of action is. However, you should always be on the lookout for the following symptoms after a car accident:

Loss of consciousness. Vaginal bleeding. Pain in the abdomen. Faintness or dizziness. Vomiting. Not being able to feel the baby move.

Always remember, it never hurts to be seek medical attention after a car accident. This will keep you healthy and will help you settle your car insurance claim more quickly.· Don’t forget to exchange name, address, phone number, driver’s license number and insurance information with the other driver. You need this information to protect yourself so that you can report the accident and collect any damages you may be entitled to receive. If you are involved in an accident it is your legal duty to stop as close to the scene of the accident as possible . Wisconsin law dictates that you must stop your vehicle immediately following any auto accident, even if it only results in property damage. Once stopped you must fulfill the following requirements under Wis. Stat. 346.67:(a) The operator shall give his or her name, address and the registration number of the vehicle he or she is driving to the person struck or to the operator or occupant of or person attending any vehicle (NO ONE ELSE BESIDES POLICE) collided with; and(b) The operator shall, upon request and if available, exhibit his or her operator's license to the person struck or to the operator or occupant of or person attending any vehicle collided with; and(c) The operator shall render reasonable assistance to any person injured in the accident, including transporting, or making arrangements to transport the person to a physician, surgeon, or hospital for medical or surgical treatment if it is apparent that medical or surgical treatment is necessary or if requested by the injured person.UNFORTUNATELY YOU MUST BE CAREFUL ABOUT GIVING OUT MORE INFORMATION THAN REQUIRED BY LAW. PEOPLE HAVE BEEN KNOWN TO FAKE ACCIDENTS TO OBTAIN PERSONL IDENTIFYING INFORMTION AND USE IT TO STEAL YOUR IDENTITY. DO NOT allow your license or registration to be photographed. In the hands of criminals, your driver’s license number can be as valuable as cash. Many retailers accept driver’s license information to verify identity over the phone. In fact, your license number is the most common way to confirm your identity after Social Security number and date of birth. Recently, the National Association of Insurance Commissioners cautioned drivers about providing too much information following an auto accident. That is also a benefit to calling the police: they will tell you what information you must provide by law. The National Association of Insurance Commissioners (NAIC) has put together two apps for Apple or Android that can be downloaded to your phone as CHECKLIST ON YOUR PHONE: Apple: https://itunes.apple.com/us/app/wreckcheck/id543290503?ls=1&mt=8 and Android: https://play.google.com/store/apps/details?id=org.naic.android.wreckcheck&feature=search_result#?t=W251bGwsMSwyLDEsIm9yZy5uYWljLmFuZHJvaWQud3JlY2tjaGVjayJdREMEMBER HOWEVER THAT WISCONSIN LAW MAY HAVE DIFFERENT REQUIREMENTS THAN WHAT IS IN THESE APPS. Contact attorney Paul A. Ksicinski.

If you fail to follow your legal duties, you could be CRIMINALLY charged with hit and run. The charge you will face depends on the extent of the auto accident.

If the accident did not involve any injury you will likely be charged with a misdemeanor and face $300 to $1,000 in fines as well as up to 6 months in jail.

If the accident resulted in injury but not “great bodily harm”, your charge will be a Class A misdemeanor and you will face a potential sentence of up to 9 months in jail and fines reaching up to $10,000.

If someone in the accident was injured and suffered “great bodily harm”, your charge will be a Class E felony. This felony charge carries a potential sentence of 15 years in prison and fines reaching $50,000.

· Don’t accept blame. The minutes after an accident are confusing, stressful, and possibly traumatic. Whatever you do, don’t admit blame for the accident. Even a car accident where you believe you may have made a mistake, may not in fact be your fault. It can be hard to know what the other driver was doing behind the wheel. He or she may have been drunk, on the cell phone, or driving without a license. Wait for the police to arrive and answer questions truthfully, but don’t blame yourself.

CHECKLIST AT AN ACCIDENT

Stay safe. Assess the situation for your immediate safety.

Stay in your car if there is a risk of injury or if moving might put you at risk of further injury.

Move to a safe location if your car is creating a safety hazard or obstructing traffic.

Do not leave the scene of the accident!

Determine if there are any injuries.

Call 911 immediately to report the accident and get help to the scene, if needed.

Follow any instructions the police give you.

Call your insurance company.

Follow any instructions given to you by your agent.

Request a tow through your insurance company, if possible.

Note the name of the tow company and location to which your vehicle is towed.

At the Scene: Gathering Information

Be courteous and polite, but do not admit fault.

Take the names and car insurance information of any drivers involved in the accident.

Only ask for contact information if the other drivers do not provide insurance information.

Get names and contact information for any witnesses to the accident.

Provide your name and insurance information to the police and to other driver(s).

At the Scene: Documenting the AccidentIf you have a smart phone or camera, take photos to document the scene if it is safe to do so. Include pictures of:

I have two younger sisters. As we were growing up, at times I was a total pain to my one sister who kept a locked diary. I was always trying to open the lock to the diary so I could read what she obviously said in secret. At the time, I had not learned from our American history.

If I had looked closer I would have respected that American history has shown a deep respect for keeping communications secret. Everyone from Jefferson and Madison to Abigail Adams tried to keep their communications secret. The Founders used secret communications methods to deny information to those not intended to receive it and to act as a "secure seal." Ralph E. Weber, United States Diplomatic Codes and Ciphers, 1775-1938 88 (1979). "As rebels and conspirators, the young nation's leaders ... turned to codes and ciphers in an effort to preserve the confidentiality of their communications. One of the earliest acts of the Continental Congress was to order that its Committee handling foreign correspondence use "cyphers." Ralph E. Weber, Masked Dispatches: Cryptograms and Cryptology in American History, 1775-1900 5-6 n.6. (1993). “During the Revolutionary period cipher was employed extensively not only in public correspondence where secrecy was especially important but in the private correspondence of public men as well." Edmund Cody Burnett, Ciphers of the Revolutionary Period, 22 American Historical Review 329 (1917). "In the years after 1780, Jefferson, James Madison, James Monroe, and a covey of other political leaders in the United States often wrote in code in order to protect their personal views on tense domestic issues confronting the American nation. Employing many codes and a few ciphers, they sought safety for their dispatches: they built security fences to protect their correspondence from political rivals and American postal officials.” ,Masked Dispatches: Cryptograms and Cryptology in American History, at 6.

Hit the fast forward button to move us to the present and people continue to do today what was done yesterday: communicate in secret. As always, the government says it has legitimate reasons to snoop into a citizen’s personal business. For instance, in In re Grand Jury Subpoena Duces Tecum (Doe), 670 F.3d 1335 (11th Cir. 2012). A grand jury issued a subpoena commanding Doe to decrypt and produce data from the laptop computers and hard drives, and Doe informed the US attorney that he refused to comply because doing so would violate his Fifth Amendment privilege against self-incrimination. Recall that the Fifth Amendment protects the accused against perjury, contempt, or providing evidence against themselves. Akhil R. Amar & Renee B. Lettow, Fifth Amendment First Principles: The Self-Incrimination clause, 93 MICH. L. REV. 857, 890 (1995). Moreover, protects for the dignity of an individual's private thoughts from government invasion. Michael Dann, The Fifth Amendment Privilege Against Self-Incrimination: Extorting Physical Evidence from a Suspect, 43 S. CAL. L. REV. 597, 611 (1970). The prosecutor tried to end run the Fifth Amendment protections by getting a trial court order that granted Doe immunity for production of the data. However, the immunity was limited to the act of producing the data; in other words, the government could make “derivative use” of the data in a criminal prosecution of Doe.

The Eleventh Circuit held that the act of decryption and production would constitute testimony, which would implicate the Fifth Amendment. The Eleventh Circuit also held that the trial judge “erred in limiting [Doe’s] immunity . . . to the Government’s use of his act of decryption and production, but allowing the Government derivative use of the evidence such act disclosed.” Doe, 670 F.3d at 1341. In reaching this decision, the Doe court explained that “even if the decryption and production of the contents of the hard drives themselves are not incriminatory, they are a “link in the chain of evidence” that is designed to lead to incriminating evidence; this is sufficient to invoke the Fifth Amendment privilege. Hoffman v. United States, 341 U.S. 479, 486, 71 S. Ct. 814, 818, 95 L. Ed. 1118 (1951) (“The privilege afforded [by the Fifth Amendment] not only extends to answers that would in themselves support a conviction under a federal criminal statute but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute.” In re Grand Jury Subpoena Duces Tecum (Doe), at note 15. Citing Curcio v. United States, 354 U.S. 118, 128, 77 S. Ct. 1145, 1151 (1957), the Doe court explained that an act of production is testimonial when “the government compels the individual to use ‘the contents of his own mind’ to explicitly or implicitly communicate some statement of fact.” Under this test, “the decryption and production would be tantamount to testimony by Doe of his knowledge of the existence and location of potentially incriminating files; of his possession, control, and access to the encrypted portions of the drives; and of his capability to decrypt the files.” Doe, at 1346.

Finally, the Eleventh Circuit stated that the district court could have compelled decryption if it had offered "constitutionally sufficient immunity" and the government had shown that the accused was actually capable of decrypting the drive. Id. at 1349–50. Referring to the landmark case of Kastigar v. United States, 406 U.S. 441 (1972) the Eleventh Circuit noted that to be constitutionally sufficient, the immunity must be "co-extensive with the scope of the privilege." Id. at 1350–51. Although not mentioned by the Eleventh Circuit here, the finding that a password was testimonial has also been reached by district courts. See e.g. U. S. v. Kirschner, 823 F. Supp. 2d 665 (E.D. Mich. 2010). In Kirschner, the accused was subpoenaed to testify and provide his passwords to a grand jury. Id. at 666. The court found that the passwords were testimonial and therefore protected by the Fifth Amendment. Id. at 669.

The mood and temper of the public in regard to the treatment of crime and criminals is one of the most unfailing tests of the civilization of any country.Sir Winston Churchill‘Report of an Inquiry into Prison Disturbance’HMSO, Command 1456 , London Home Office 1910

People of color receive disparate treatment in the criminal justice system throughout the nation and African-Americans and Hispanics constitute a disproportionate percentage of incarcerated populations in Wisconsin. Wisconsin Governor Doyle

Racial disparities permeate the entire criminal justice continuum, in the number of arrests, cases charged, sentences and probation and parole revocations. Wisconsin Office of Justice Assistance

President Lyndon Johnson formed an 11-member National Advisory Commission on Civil Disorders in July 1967 to explain the riots that plagued cities each summer since 1964 and to provide recommendations for the future. The Commission’s 1968 report, informally known as the Kerner Report, concluded that the nation was “moving toward two societies, one black, one white—separate and unequal.” Report of the National Advisory Commission on Civil Disorders, Summary of Report, p. 1 (1968). The Commission warned that if changes were not made America would be become more polarized resulting in the “destruction of basic democratic values.” Id. Looking to the causes of those riots, it was found that “the rioters appeared to be seeking [ ] fuller participation in the social order . . . . [r]ather than rejecting the American system, they were anxious to obtain a place for themselves in it.” Id. at 7. Specifically, it found that “[w]hite racism is essentially responsible for the explosive mixture which has been accumulating in our cities,” id. p. 10, and that this caused a pervasive feeling of powerlessness among Negroes that there is no effective alternative to violence as a means of achieving redress of grievances which include: police practices, unemployment and underemployment, inadequate housing, inadequate educational opportunities, poor recreational facilities, and ineffective grievance mechanisms. Id at 11.

Today, America is two societies: one incarcerated and one not. America is two societies which are separate and unequal, especially regarding the civil right to vote. Nationally, statistics demonstrate African American men are much more likely to be incarcerated than White men, and that a very high proportion of Black men spend some time in prison. Sadly, researchers have determined that one third to two thirds of the 100,000 poorest black male three-year olds of today will eventually end up in prison. Marc Mauer and Tracy Huling, “Young Black Americans and the Criminal Justice System: Five Years,” The Sentencing Project (October 1995), http://www.sentencingproject.org/doc/publications/rd_youngblack_5yrslater.pdf See also, Thomas Bonczar and Allen Beck, ‘Lifetime Likelihood of Going to State or Federal Prison’, Bureau of Justice Statistics Special Report, Washington, BJS, March 1997, p. 1; http://bjs.ojp.usdoj.gov/content/pub/pdf/Llgsfp.pdf , for a state-by-state analysis, see Marc Mauer, ‘Racial Disparities in Prison Getting Worse in the 1990s’, Overcrowded Times, vol. 8, no. 1, February 1997, pp. 9–13. It must be recalled that if you have been convicted of a felony and are serving that felony sentence, you cannot vote. This means that a very high proportion of Black men will spend some time in or out of prison with no way to protest political grievances by voting. This creates a feeling of hopelessness mentioned in the Kerner Report.

Michelle Alexander explains the consequences of this disproportionate minority confinement:In the era of colorblindness, it is no longer socially permissible to use race, explicitly, as a justification for discrimination, exclusion, and social contempt. So we don’t. Rather than rely on race, we use our criminal justice system to label people of color “criminals” and then engage in all the practices we supposedly left behind. Today it is perfectly legal to discriminate against criminals in nearly all the ways that it was once legal to discriminate against African Americans. Once you’re labeled a felon, the old forms of discrimination—employment discrimination, housing discrimination, denial of the right to vote, denial of educational opportunity, denial of food stamps and other public benefits, and exclusion from jury service—are suddenly legal. As a criminal, you have scarcely more rights, and arguably less respect, than a black man living in Alabama at the height of Jim Crow. We have not ended racial caste in America; we have merely redesigned it. Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness p.2 (2010)

Ms. Alexander further explained that “mass incarceration in the United States had, in fact, emerged as a stunningly comprehensive and well-disguised system of racialized social control that functions in a manner strikingly similar to Jim Crow.” Id at 4. “As is well known, disproportionately many African Americans pass through the justice system, and consequently the impact of disqualification for felony conviction is especially dramatic for the black electorate. Nearly 7 percent of black Americans cannot participate in the electoral process because of felony convictions. Because 95 percent of felons are male, the felony disfranchisement rate for black men is almost double. All but one state, Hawaii, records felony disfranchisement rates for blacks that are larger than disfranchisement rates for whites and others, in most cases several times larger.” Florida Advisory Committee to the United States Commission on Civil Rights Ex-felon voting rights in Florida, (August 2008), p. 1-2, http://www.usccr.gov/pubs/EX-FelonVRFL.pdf

There are important distinctions between the disenfranchisement laws of early America and disenfranchisement as practiced in modern America. Modern disenfranchisement laws are automatic, invisible in the criminal justice process, considered "collateral" rather than explicitly punitive, and applied to broad categories of crimes with little or no common character – characteristics not in common with early disenfranchisement laws. “Most state constitutions explicitly gave their legislatures the power to pass laws disenfranchising criminals. Early U.S. disenfranchisement laws drew upon European models and were generally limited to a few specific offenses. Over time, states expanded the scope of such laws to include all felonies, often citing a rationale to “preserve the purity of the ballot box”. Many states enacted felon disenfranchisement provisions in the aftermath of the Civil War. Several scholars have traced the enhanced impact of disenfranchisement laws in certain states to a mid-nineteenth century effort to bar newly-freed African Americans from participating in local elections. See, e.g. Bailey Figler, A Vote for Democracy: Confronting the Racial Aspects of Felon Disenfranchisement, 61 N.Y.U. ANN. SURV. AM. L. 723, 732 (2006); Daniel S. Goldman, The Modern- Day Literacy Test?: Felon Disenfranchisement and Race Discrimination, 57 STAN. L. REV. 611, 626 (2004); Marc Mauer, Felon Disenfranchisement: A Policy Whose Time Has Passed? (2004), available at http://www.sentencingproject.org/Admin/Documents/publications/fd_fdpolicywhosetime.pdf; Christopher Uggen & Jeff Manza, Democratic Contraction? Political Consequences of Felon Disenfranchisement in the United States, 67 AM. SOC. 777, 781 (2002)

Such laws diluted the voting strength of newly enfranchised racial minority groups, particularly in the Deep South but in the North as well.” Behrens, Uggen, Manza, Ballot Manipulation and the “Menance of Negro domination”: Racial Threat and Felon Disenfranchisement in the United States, 1850-2002, 109 AMER. J.OF SOCIOLOGY 559, 563 (Nov. 2003). See also, Hunter v. Underwood, 471 U.S. 222, 229 (1985) (describing the "movement that swept the post-Reconstruction South to disenfranchise blacks"); Cotton v. Fordice, 157 F.3d 388, 391 (5th Cir. 1998) ("[Felon disenfranchisement statutes were] enacted in an era when southern states discriminated against blacks by disenfranchising convicts for crimes that, it was thought, were committed primarily by blacks."); Ratliff v. Beale, 20 So. 865, 868 (Miss. 1896) (tracing devices, including criminal disenfranchisement, added to the 1890 Mississippi Constitution to "obstruct the exercise of the franchise by the negro race"); see also Andrew L. Shapiro, Challenging Criminal Disenfranchisement Under the Voting Rights Act: A New Strategy, 103 YALE L.J. 537, 537-42 (1993). These laws, if not explicit in their racial goals, often singled out crimes for which blacks were more likely to be convicted than whites, with little regard to the severity of the crime or its possible relation to the franchise. Manza and Uggen, LOCKED OUT: FELON DISENFRANCHISEMENT AND AMERICAN DEMOCRACY 43, 55 (2006); Alec C. Ewald, "Civil Death": The Ideological Paradox of Criminal Disenfranchisement Law in the United States, 2002 WIS. L. REV. 1045, 1088-89; Florida Advisory Committee to the United States Commission on Civil Rights Ex-felon voting rights in Florida, (August 2008), p. 4 (“Nevertheless, despite what appeared to be a clear prohibition on race discrimination in voting, in the ensuing decades most former Confederate states adopted barriers that although neutral on the surface served to prevent many blacks from voting.”) Critically, scholars have found that "the racial composition of state prisons is firmly associated with the adoption of felon disenfranchisement laws." Figler, A Vote for Democracy: Confronting the Racial Aspects of Felon Disenfranchisement, 61 N.Y.U. ANN. SURV. AM. L. 723, 729-31 (2006).

In America today disenfranchisement laws represent a “crazy quilt of disqualifications and restoration procedures” allowing for disagreement in a single jurisdiction of how the law should be interpreted and applied. Susan M. Kuzma, U.S. Dep't of Justice, Office of the Pardon Attorney, Civil Disabilities of Convicted Felons: A State-by-State Survey, at Forward, p.i, and Introduction, p. 1 (1996). This “crazy quilt of disqualifications” has severe implications. An ex-felon may vote in one state, but his former cellmate may not in a neighboring state; an ex-convict who moves across state lines may gain or lose the right to vote. The federal voting rights of former felons, therefore, depends "solely on where a person lives." H.R. 906: Civic Participation and Rehabilitation Act of 1999, 106th Cong. Section 2 (1999). Many ex-felons therefore are effectively forced to choose between which constitutional right they will waive: the right to interstate travel or the right to vote.

However, it must be realized that it is clear that racial disparities in the criminal system are most severe at the point of arrest (where African Americans are arrested at a rate twice their share of the general population) and the point of incarceration (where African Americans are 11% more likely to be incarcerated). Conversely, African Americans are underrepresented at the stage of probation (0.84), which is not surprising since probation sentences reflect those persons not sentenced to incarceration.” Reducing Racial Disparity in the Criminal Justice System: A Manuel For Practitioners and Policymakers, p. 22, The Sentencing Project (2008), http://www.sentencingproject.org/doc/publications/rd_reducingracialdisparity.pdf. African Americans are therefore set up by the criminal system to be disproportionately disenfranchised. See, Steven R. Donziger, Ed., The Real War on Crime: The Report of the National Criminal Justice Commission (Harper Perennial 1996) 107-09 (the racial difference among African-Americans and whites in prison is overwhelmingly wider than arrest rates suggest it should be absent racial bias. There are seven African-American to each white in prison…Most studies reveal what most police officers will casually admit: that race is used as a factor when the police decide to follow, detain, search, or arrest…To justify the use of race in forming this suspicion, these officers might point to racial disparities in arrest patterns: if minorities get arrested more often, they argue, then minorities must be committing more crime. This is a self-fulfilling statistical prophecy: racial stereotypes influence police to arrest minorities, thereby creating the arrest statistics needed to justify the racial stereotype.)

To deny prisoners the right to vote is to lose an important means of teaching them democratic values and social responsibility. Demleitner, Continuing Payment on One's Debt to Society: The German Model of Felon Disenfranchisement as an Alternative, 84 MINN. L. REV. 753 (2000) (In Germany, deprivation of voting rights is limited to serious, legislatively enumerated offenses, must be assessed directly by the sentencing judge at the time of sentencing, and can be imposed only for a limited and relatively short period of time.) In Germany, a judge may impose disenfranchisement for certain offenses, such as treason, but only for a maximum of five years. Demleitner, supra. France excludes from suffrage only those convicted of election offenses and abuse of public power. Ireland and Spain both allow prisoners to vote, and in Australia a mobile polling staff visits prisons so that inmates may vote (Australian Electoral Commission 2001). In 1999, South Africa’s highest court ruled that prison inmates had the right to vote. Behrens, Uggen, Manza, Ballot Manipulation, 109 AMER. J.OF SOCIOLOGY at 562 n.3.

Despite the Fifteenth Amendment’s passage, many States devised numerous methods for denying the franchise to racial minorities. “These included grandfather clauses, property qualifications, ‘good character’ tests,” white primaries, literacy tests, racial gerrymanders, and interpretation requirements. South Carolinav. Katzenbach, 383 U.S. 301, 311 (1966). As a result, African- American voting rates in some States dropped precipitously. See, e.g., Louisiana v. United States, 380 U.S. 145, 147-149 (1965) (noting that beginning with the adoption of the Louisiana Constitution of 1898, the State implemented a policy of denying African-American citizens the right to vote such that from 1898 to 1944, the percentage of registered African- American voters declined from 44% to 0.2%); United States v. Mississippi, 380 U.S. 128, 144 (1965). In the tradition of Jefferson Davis, twentieth-century states' rightists wax eloquent about the dangers of a national government run rampant, but regularly deploy the rhetoric of states' rights to defend states' wrongs. Sadly, in regards to voting rights, "states' rights" is often a code word for racial injustice and disregard for the rights of local minorities See, e.g., Amar, Of Sovereignty and Federalism, 96 YALE L.J. 1425, 1425-29, 1488 n.252 (1987)--code words for a world view far closer to Jefferson Davis' than James Madison's words in the his Virginia Resolutions of 1798, and his Report of 1800.

The meaning of these statistics in terms of felon disenfranchisement is clear. The unwarranted racial disparities in the criminal justice system in the United States (in terms of policing, arrest, sentencing, and incarceration) result in felony disenfranchisement laws having a disproportionate impact on African American and Hispanic minority groups. In 2007, thirty-eight percent of the nation’s 1.5 million prison inmates were black and twenty-one percent were Hispanic, The Sentencing Project, Facts About Prisons and Prisoners (2009) (citing Bureau of Justice Statistics), available at http://www.sentencingproject.org/doc/publications/inc_factsaboutprisons.pdf. despite the fact that these groups only represent twelve and fifteen percent of the general population, respectively. U.S. Census Bureau, Population Estimates Program (2007). “The impact of the separate provisions for felony disqualification can be seen in estimates of the effect of recission. Repeal of permanent disfranchisement would reduce the number excluded from the electorate on account of felony convictions by about a third. Repeal of disfranchisement during probation and parole would have somewhat larger effect, mostly because it is current policy in more and larger states. Repeal of both provisions would benefit white and other felons a little more than blacks. Overall, felony disfranchisement rates would fall to just 0.6 percent, about 1.2 million people, were disqualifications imposed only upon felons in current custody. Felony disfranchisement rates would remain at 2.5 percent for blacks, well above the felony disqualification rate for whites and others under current law, 1.5 percent.” John Mark Hansen, Task Force Report on the Federal Election System: Disfranchisement of Felons (July 2001), Chap. 8, p. 2

“No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined. Our Constitution leaves no room for classification of people in a way that unnecessarily abridges this right.” Wesberry v. Sanders 376 U.S. 1, 17–18 (1964). As President Lyndon Johnson said in his message that accompanied his request that Congress enact a voting rights bill, “In the world, America stands for-and works for-the right of all men to govern themselves through free, uninhibited elections. An ink bottle broken against an American Embassy, a fire set in an American library, an insult committed against the American flag, anywhere in the world, does far less injury to our country and our cause than the discriminatory denial of any American citizen at home to vote on the basis of race or color.” Philip A. Klinkner & Rogers M. Smith, The Unsteady March: The Rise and Decline of Racial Equality in America 277 (1999) To ensure that our citizens enjoy this precious right, courts must refuse to enforce disenfranchisement laws which have both discriminatory origins and effects.

A law school professor explains wonderfully to people that the "Black lives matter" movement is not about excluding other groups, but focusing on a historically disadvantaged group:

There is a difference between focus and exclusion. If something matters, this does not imply that nothing else does. If l say “Law Students Matter” it does not imply that my colleagues, friends, and family do not. Here is something else that matters: context. The Black Lives Matter movement arose in a context of evidence that they don’t. When people are receiving messages from the culture in which they live that their lives are less important than other lives, it is a cruel distortion of reality to scold them for not being inclusive enough.

As applied specifically to the context in which I wore my Black Lives Matter shirt, I did this on a day in Criminal Procedure when we were explicitly discussing violence against the black community by police.

There are some implicit words that precede “Black Lives Matter,” and they go something like this:

Because of the brutalizing and killing of black people at the hands of the police and the indifference of society in general and the criminal justice system in particular. It is important that we say that…

This is, of course, far too long to fit on a shirt.

Black Lives Matter is about focus, not exclusion. As a general matter, seeing the world and the people in it in mutually exclusive, either/or terms impedes your own thought processes. If you wish to bear that intellectual consequence of a constricting ideology, that’s your decision. But this does not entitle you to project your either/or ideology onto people who do not share it. ...

By way of disclosure, I am proud to say I was a public defender for over 20 years.

A criminal arrest and charge can throw your life into chaos and leave you with overwhelming decisions. Our Constitution protects rights we have not by virtue of them being given to us by the government, but simply because we are Americans. One of the cornerstones of the American criminal system is a person’s right to have a lawyer. The right to have a lawyer present when the whole power of the State is brought against you in the form of a criminal prosecution is the most important right a person has in a criminal case. The right to counsel is the right by which other rights like the right to present a defense and proof beyond a reasonable doubt are protected. That is why Paul Ksicinski would be honored if you chose him to fight for you in your criminal case.The role of defense counsel is and must forever be drastically different than the attorney who appears for the prosecution. The role of a defense attorney in the criminal system was explained some years ago by United States Supreme Court Justice Byron White in the landmark case of United States vs. Wade, 388 U.S. 218 (1967):

Law enforcement officers have the obligation to convict the guilty and to make sure they do not convict the innocent. They must be dedicated to making the criminal trial a procedure for the ascertainment of the true facts surrounding the commission of the crime. To this extent, our so-called adversary system is not adversary at all; nor should it be. But defense counsel has no comparable obligation to ascertain or present the truth. Our system assigns him a different mission. He must be and is interested in preventing the conviction of the innocent, but, absent a voluntary plea of guilty, we also insist that he defend his client whether he is innocent or guilty. The State has the obligation to present the evidence. Defense counsel need present nothing, even if he knows what the truth is. He need not furnish any witnesses to the police, or reveal any confidences of his client, or furnish any other information to help the prosecution’s case. If he can confuse a witness, even a truthful one, or make him appear at a disadvantage, unsure or indecisive, that will be his normal course.

There is a special type of attorney who specializes in this type of criminal defense: a public defender. But public defenders never were intended to be for everybody. At a most basic level, a public defender is only for someone who cannot afford their own lawyer so the defendant has a lawyer appointed to them at (supposedly) public expense.

Given the economic times we live in, it is a sad comment on the number of people who are represented by public defenders. But this blessing is also a curse. Unfortunately, the sheer volume of cases or “caseload” which an individual public defender is forced to handle or face discipline by his/her office is staggering. Most public defenders are hard-working but simply cannot give a case the attention it deserves because of the 45 other cases the public defender has had to open that month. On the other hand, a private criminal defense attorney can choose how many cases they can take on, so they can give each case the attention it deserves.

That illustrates another problem you have in representation by the public defender office. The total lack of choice you have in selecting who will represent you. The public defender’s office will assign an attorney to your case, so you may be forced to settle for an attorney that you don’t get along with or one who doesn’t have the experience your case requires. Facing the consequences of a serious criminal offense, which includes penalties such as jail or prison, may not be the time to have such a limited choice. You have more control in selecting what clothes or shoes you will wear than you have in selecting what public defender is going to represent you on a case where you can go to prison or jail. That is why you should never underestimate the importance of being able to choose an experienced professional attorney, Paul Ksicinski.

Importantly, public defenders unfairly are said to not care about their clients because they are not real attorneys or “public pretenders.” Bluntly, that is the biggest load of crap I have ever heard. Again, most public defenders are hard-working dedicated attorneys. However, the ability of a public defender to show he/she cares about you and your case is a function of his/her available time given the staggering caseload imposed upon them. Trust me, public defender’s care. But the volume of their cases force many of public defenders to discuss the justice their client will get in the hallway in the courthouse.

One major consequence of current public employment in the State of Wisconsin is that many experienced professionals have been forced out of State service. The public is told this is good because it saves money. This simply is not true. Experienced public defenders –and prosecutors – know what cases must go to trial and what cases can be resolved by a plea bargain. Unfortunately, this tax saving economy of experience has been lost in Wisconsin because many experienced professionals are being forced out of public service or into retirement. For the individual defendant, the consequence is not to have a public defender representing them who is as battle tested as a private attorney who can work out the best deal possible deal for their client.

Some people believe getting a public defender is free in Wisconsin. Many times it is not. The Office of the State Public Defender may determine someone is not poor enough to be appointed a public defender for free. After a case is over, the Office of the Public Defender may charge a person for that representation. Sometimes, the Office of the Public Defender has even sued people to get their fee for the appointed attorney. So please realize, you may have to pay for that attorney that has been appointed to you by the Office of the Public Defender. Of course, private attorneys charge for their services. But some private attorneys will negotiate their fees. Some even have sliding scales based on your ability to pay. Some private attorneys charge a fixed fee, others charge an hourly rate. However, like most things in life, you get what you pay for. If you can’t afford an experienced and skilled private attorney, then having a public defenders is much better than going on your own. Moreover, I worry about low cost private attorneys because they don’t seem to charge enough to provide a high level of service.

The bottom line is it takes both skill and time to get a great deal for client or set something up for a successful trial. For your criminal case, private attorney v. public defender is a choice you must make. Just remember defendants get what they pay for and sometimes “free” may be too high a price to pay. Paul Ksicinski will use his over 25 years of skills and experience to see that you avoid conviction and keep your charges from affecting all areas of your life if there is any way possible